Trespass, Ab initio. Trover. Conversion. Evidence, Memorandum. Witness, Cross-examination. Practice, Civil, Conduct of trial, Requests and rulings, Verdict.
At the trial of an action of tort with a declaration containing three counts, the first for the conversion of the furniture and provisions in a restaurant, the second for the conversion of "divers bank notes and coins to the value of $35," and the third for trespass in wrongfully excluding the plaintiff from his restaurant, there was evidence tending to show that the defendant, who was a constable, entered the plaintiff's restaurant to make an attachment under a writ and placed a keeper in charge, and that then, the plaintiff desiring to continue the business, it was arranged that the business should not be interrupted, but that the money taken in should be paid to the defendant; that, when the usual time for closing the store at night arrived, the defendant told the plaintiff that he would have to lock up the store himself unless the plaintiff was willing to surrender to him possession thereof and to give to him the keys; that the plaintiff thereupon gave the keys to the defendant; that at the usual opening time the next morning the defendant opened the store and left his keeper in charge; that during the day, because the defendant insisted that the waitresses pay to him money which they received, they all departed and the restaurant was left in the sole charge of the defendant; that at closing time the defendant, still retaining possession of the plaintiff's keys, against the objection of the plaintiff fastened the door with a padlock and staple and put a sign upon it, saying, "Closed. M., constable"; that the premises remained in that condition until, five days later, the plaintiff gave a bond dissolving the attachment, whereupon the defendant returned to the plaintiff the keys of the store, but did not return $27 which he had taken possession of. Held, that upon the evidence the jury properly might have found that the plaintiff surrendered the premises to the defendant only upon condition that the restaurant should be kept open during business hours, and therefore that the defendant properly might have been found to have been a trespasser ab initio and to be liable under all of the counts of the declaration.
An action of tort in the nature of trover will lie for the conversion of money.
A request for a ruling properly may be refused by the judge presiding at a trial if it singles out only one of several circumstances bearing upon a certain issue and asks for a ruling as to its effect apart from the other circumstances in evidence on the same issue.
At the trial of an action of tort where evidence as to the nature and extent of the plaintiff's business was admissible as bearing upon the question of damages that might be recovered for the alleged tort of the defendant, the plaintiff produced no books of account, but testified as to his business from certain memoranda in pencil, which he had drawn up on the morning of the trial with the assistance of his counsel. The counsel for the defendant took from the plaintiff the memoranda and cross-examined him with regard to them. On redirect examination of the plaintiff, the plaintiff's counsel offered the memoranda in evidence and they were admitted subject to an exception by the defendant. Held, that it could not be said that the presiding judge acted improperly, since he might well have thought that the memoranda would help the jury to understand the cross-examination better.
The declaration in an action of tort contained three counts, one for the conversion of the furniture and provisions in a restaurant, the second for the conversion of "divers bank notes and coins to the value of $35," and the third for trespass in wrongfully excluding the plaintiff from the restaurant. At the trial it appeared that the money described in the second count was in the restaurant and that it and the furniture and provisions described in the first count were seized by the defendant under circumstances which could have been found to have made him liable as a trespasser ab initio, so that there was evidence which warranted a verdict for the plaintiff on each of the counts. The presiding judge was not asked to instruct the jury to find a verdict as to each count and did not do so. The jury returned a general verdict for the plaintiff. The defendant moved for a new trial on the ground that the jury should have been ordered to find separately as to each count. The motion was overruled. Held, that the motion properly was overruled, because, if the defendant wished that separate verdicts should be returned, he should have asked for an instruction to that effect, and also because as respected the question of damages the three counts of the declaration were closely connected with each other and described acts substantially forming parts of one transaction, so that the presiding judge well might have thought that it was best that damages should be assessed in one general sum.
HAMMOND, J.
1. Upon the evidence the jury might properly have found that, even if the plaintiff had consented that the defendant should have the keys of the restaurant in his possession for the preservation of the attachment, he consented only upon the condition that the restaurant should be open for business at its usual hours; that the defendant, in view of the failure of the waitresses to pass over to him the money received by them from the customers and of the other circumstances in the case, had concluded to stop the business and entirely exclude the plaintiff from the restaurant, even during business hours; that in execution of that purpose he procured a padlock and some staples and with them locked the entrance door, and further posted upon the door the notice that the place was closed by him as constable; and that in this way the plaintiff was excluded from the restaurant for several days against his own will. The jury were instructed in substance that the plaintiff could not recover if he consented to being excluded. Their verdict shows that they found he was excluded from the store without his consent. In thus excluding the plaintiff the defendant exceeded his authority under the writ and became a trespasser ab initio. Walsh v. Brown, 194 Mass. 317.
2. Being without justification for the seizure of the articles of personal property he was liable in conversion for the property he seized. It is urged, however, by the defendant that even if trover will lie for the conversion of the personal property named in the first count, it will not lie for the conversion of the money in the second count; that the taking and keeping of the money by the defendant under the circumstances created only a general indebtedness from him to the plaintiff, and that trover will not lie for a general indebtedness.
The return made by the defendant is not set out in full in the record before us, but it is stated that it appears from the return that after deducting from the money which the defendant received the money which he had paid out there was left in his hands $24.37. It is to be assumed that he originally took the money by attachment under his writ. Having by subsequent misconduct become a trespasser ab initio, he no longer had any right to its possession. It is as if he had wrongfully taken it in the first place to his own use. It is elementary that for the conversion of money, either in the form of specie or notes, trover will lie.
So far as respects the third count, which was in trespass, suffice it to say that the evidence was ample to support it.
The first three requests therefore were rightly refused. As to the second set of requests, the first and second were rightly refused because they single out only one of several circumstances bearing upon the same issue and ask for its effect when considered apart from the others; the fourth and fifth were covered, so far as sound in law, by the instruction given to the effect that if the plaintiff consented to being excluded from the store he could not recover; the sixth was rightly refused because inconsistent with a legitimate view of the evidence, and the same may be said of the tenth and eleventh.
3. The memoranda produced by the plaintiff and taken by the defendant, and with reference to which the defendant cross-examined the plaintiff, were properly admitted in evidence. Even if the rule making a paper admissible, which is called for by one party, is produced by the other and is examined by the party calling for it, is not applicable, there is still a reason for the admission of the memoranda in this case. In a certain sense they were a part of the cross-examination, and the presiding judge may well have thought that they should be admitted not as evidence of the truthfulness of the statements therein contained, but in order to the full understanding of the cross-examination. The record shows no error in its admission.
4. The jury returned a general verdict for the plaintiff in the sum of $1,000, whereupon the defendant moved to set aside the verdict for the three following reasons (among others):
"3. While three separate and different counts for different causes of action were submitted to the jury, a general verdict in favor of the plaintiff was found and it should therefore be set aside.
"4. The measure for damages under the different counts and different causes of action submitted to the jury was not the same and the general verdict in favor of plaintiff should therefore be set aside.
"5. The defendant was prejudiced by the finding of a general verdict in favor of plaintiff because different counts for different causes of action in which the measure of damages was not the same, were submitted to the jury, and it should therefore be set aside."
Where there are two or more counts each for a different cause of action, it is the right of either party to have a separate verdict on each count, and such a course often is taken. But it is a right which may be waived, and it is not unusual to have a general verdict on all the counts. Wood v. Southwick, 97 Mass. 354. And in the absence of any request to the contrary such a verdict, at least where there is evidence to sustain each count, is good. Richmond v. Whittlesey, 2 Allen, 230.
In Richmond v. Whittlesey, ubi supra, there were four counts, the first and second being for assault and battery and false imprisonment, the third for the conversion of a horse and the fourth for slander. The jury were instructed that the plaintiff was not entitled to recover on the fourth count. There was a general verdict for the plaintiff, and the defendants moved in arrest of judgment, one of the grounds alleged being that "the verdict is a general verdict on four counts, and it does not appear on which counts the jury found for the plaintiff, or how damages were assessed by them on the several counts." The motion was overruled and on the exception of the defendant the case came to this court. In giving the opinion of the court Bigelow, C.J., used the following language: "The motion in arrest of judgment cannot prevail. The several counts in the declaration, except the fourth, were properly joined under Gen. Sts. c. 129, § 2, cl. 5, and the jury were correctly and distinctly instructed by the court that the plaintiff was not entitled to recover on the fourth count. It must now be assumed that under this explicit instruction no damages were given for the alleged slander set out in the fourth count. The verdict was therefore a general verdict in damages on three counts, which were valid and sufficient and properly joined, and in support of which there was evidence laid before the jury. The assessment of entire damages on all the counts constitutes no error. If the defendant wished that the damages on each count should be assessed and returned separately, he should have requested the court to instruct the jury to return their verdict accordingly. Having failed to do so, he cannot now take the objection that the verdict was general and does not show the damages which were assessed on each cause of action set out in the declaration. 1 Chit. Pl. (6th Am. ed.) 445."
The principle thus set forth is decisive of this case. Moreover in the case before us it is to be noted that while there were three counts, yet so far as respects the question of damages they were closely connected with each other and described acts substantially forming parts of one and the same general transaction; and the trial judge may well have thought that the most sensible way was for the jury to assess the damages in one general sum, and that the parties were content with that method.
Exceptions overruled.